England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

The Strand

London WC2

Wednesday 22nd October 1997

B E F O R E :

LORD JUSTICE POTTER

MRS JUSTICE EBSWORTH

and

MR JUSTICE FORBES

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R E G I N A

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CLARENCE BARRINGTON MORRIS

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Computer Aided Transcript of the Handed Down Judgment of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel No: 0171 421 4040 Fax No: 0171 831 8838

(Official Shorthand Writers to the Court)

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MR B KOGAN appeared on behalf of the Appellant

MR T BANKS appeared on behalf of the Crown

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JUDGMENT

(As Approved by the Court )

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Crown Copyright

Wednesday 22nd October 1997

JUDGMENT

LORD JUSTICE POTTER:

INTRODUCTION.

This is an appeal against conviction brought with the leave of the single judge. The appellant also applies out of time for leave to appeal against sentence.

On 24th September 1996 in the Southwark Crown Court before His Honour Judge Butler QC and a jury the appellant was convicted of Assault Occasioning Actual Bodily Harm (count 1) and Common Assault (count 2). The case was an unusual one, arising out of a course of conduct on the part of the appellant usually referred to as "stalking".

Following conviction, sentence was adjourned for pyschiatric reports, the judge indicating that he had in mind, in the light of the defendant's behaviour and demeanour, the making of a hospital order pursuant to Section 37 of the Mental Health Act 1983 coupled with a restriction order. The reports of the two pyschiatrists instructed concluded that the defendant suffered from a mental illness, namely paranoid schizophrenia as well as a psychopathic disorder. Both agreed that he was a very dangerous man, particularly to women, and that a secure hospital was required for his treatment as contemplated by the judge. Despite this diagnosis, supported by both psychiatrists' oral evidence which the judge had accepted, it was the assessment of the pyschiatrist at Rampton Secure Hospital, to which the appellant was sent under an interim hospital order for assessment, that the appellant did not suffer from mental illness but was subject to an untreatable psychopathic personality disorder, so that the hospital declined to accept him for treatment. Accordingly, the judge reluctantly passed a sentence of imprisonment of 5 years under count 1 (the maximum sentence for a S.47 offence) and a concurrent sentence of 6 months' imprisonment under count 2.

THE FACTUAL BACKGROUND .

The appellant's victim was a 20-year-old dental nurse. The actual bodily harm complained of did not comprise any direct physical injury, the appellant never in fact having laid a hand upon the victim. However, she gave unchallenged evidence that by reason of his sinister and intimidating actions committed over a period of time she had suffered a variety of unpleasant nervous symptoms arising from fright and anxiety, including personality change and physical aches and pains.

She first became aware of the appellant in October 1995 when he visited the practice in which she was employed and she booked him an appointment. He asked her name and then proceeded to sing and make rhymes upon her name, thereafter visiting the surgery on a regular basis standing outside, looking in and banging on the window. He would shout out that he loved her and stay for most of the morning or afternoon. This became a daily occurrence and, despite her asking him to leave her alone he would not desist. She became increasingly frightened. In March 1996 he followed her to her parked car carrying a bag and in response to a request to leave her alone he continued to tell her he loved her, meanwhile holding something like a hammer with an axe-type head which he swung from side to side. She said she was frightened for her life.

On 21st May 1996, he again approached her, carrying the same implement which he was swinging around while blowing a whistle and shouting how much he loved her. She called the police on her mobile telephone and, on the following day he appeared at the surgery banging on the closed door and shouting angrily that he had heard she was looking for him with the police. The police arrived and arrested him.

Throughout the period of this persecution, the appellant would on occasions leave champagne for the complainant outside the surgery and throw women's underwear into the surgery. She also received letters which contained photographs of naked women and underwear.

As a result, she stated that she had difficulty sleeping and regularly dreamed of being stabbed and seeing the defendant's face in the dream. She said she felt sick and suffered stomach aches. Her personality changed and she became frightened to speak to people, nervous and jumpy at all times. She stated that, before this, she had had no aches and pains and no difficulty in sleeping, being a happy and outgoing person. She ceased to wish to go out and always had to get someone to meet her from work because, otherwise she was too frightened. She became very nervous with patients. Her state was such that she was obliged to visit her general practitioner several times to alleviate her symptoms and was prescribed Valium, which she was still taking. She said that on 4 occasions she had felt so ill that she had stayed off work for 2 or 3 days at a time.

THE MEDICAL EVIDENCE .

The evidence of the general practitioner, Dr. Staples, was read by agreement. She said that the victim attended the clinic and saw either her or her partner on 5 occasions after her first visit on the 27th March 1996. She said that the victim complained of various body pains in her joints and abdomen, felt unable to sleep and woke at night in a cold sweat. She had also complained of difficulty in concentration which was affecting her work, crying for no obvious reason, being short tempered, unable to follow her normal social life, tense and frightened of being alone. So far as the Doctor's own observations were concerned, she said that the victim appeared to have no abnormalities in her thought processes and was well orientated. Blood tests showed no abnormality; however, on examination, she was restless and tearful and showing signs of anxiety. The doctor had prescribed medication to help her sleep. It is of some importance to note that the doctor was not qualified in psychiatry and did not purport to give evidence of a psychiatric nature or as to the likely cause or causes of the victim's complaints.

The only other prosecution witness of substance was the arresting officer who stated that, at the time of his arrest, the appellant was carrying a claw hammer in his bag and 2 pairs of knickers in his pocket, which he said were his.

The evidence as recounted above was essentially not subject to any challenge at trial. The appellant declined to give evidence and none was called on his behalf.

THE JUDGE'S RULINGS ON PSYCHIATRIC EVIDENCE .

Before the trial commenced, a joint application was made by prosecution and defence for an adjournment in order for expert pyschiatric evidence to be obtained concerning the victim and the nature of her symptoms on the basis that they did not appear to be physically based. We are told that in making the application, the judge was referred to the decision of this court in the case of R -v- Chan-Fook (1994) 99 Cr. App. R 147 in which Hobhouse LJ, giving the judgment of the court stated:

"In any case where pyschiatric injury is relied upon

as the basis for an allegation of bodily harm, and the

matter has not been admitted by the defence, expert

evidence should be called by the prosecution. It should not be left to be inferred by the jury from

the general facts of the case. In the absence of

appropriate expert evidence, a question whether or

not the assault occasioning pyschiatric injury should

not be left to the jury ... There is no reason for

refusing to have regard to psychiatric injury as the

consequence of an assault if there is properly qualified evidence that it has occurred."

The judge did not regard that case as a sufficient reason or basis on which to grant an adjournment. He said:

"I see absolutely no reason for an adjournment.

It seems perfectly plain that this lady can give an

account of her symptoms. Her symptoms are such that

if the jury accept them, then the jury can say that is

actual bodily harm. I would certainly direct them it

is capable of amounting to actual bodily harm, and I

don't think the jury need a pyschiatrist to put a

label on things .... a pyschiatrist could take it little further than to say that amounts to some kind

of pyschiatric illness. Well do we give the jury

credit for any common sense in circumstances such as

these?"

He went on to say that, if the Crown indicated that, in the event of being denied an adjournment, it would not proceed with the case, he would simply ask prosecuting counsel to offer no evidence and return a verdict of not guilty.

Following the completion of the prosecution evidence, the defence made a submission of no case to answer based upon Chan-Fook. The judge said:

".. As I have made clear, I need hardly state this,

I am bound by that case. It is said by Mr. Stanton

that that case establishes there must be expert

evidence before the issue of actual bodily harm can be

left to the jury, where the harm is, what I might describe generally, as of a psychological nature.

What is immediately apparent, on the reading of that

case, is that the facts there were very different

indeed from the course of conduct which is alleged here. Nor was the harm said to have been suffered

there, remotely as serious as the harm said to have

been suffered by Miss Southall. There is, in this

case, expert opinion. It is right to say it is not

the evidence of psychiatrists, the evidence does

show that she was attending her doctor. And attended,

she says, on a number of occasions, as a result of the

acts or words of this defendant.

I have no hesitation, on the facts of this case in

deciding that there is evidence capable of amounting

to actual bodily harm. Whether it does or not will be

a matter for the jury."

He went on to indicate, as is not the subject of challenge on this appeal, that there was sufficient evidence on which a jury properly directed could convict on count 2, which charged simple Assault, in respect of which the necessity to show physical or bodily harm is unnecessary, it being sufficient that the victim is put in a state of fear.

THE GROUND OF APPEAL .

The ground of appeal in this case is limited to count 1 of the indictment and is stated thus. The judge erred in law in that he left the jury to decide whether the assault occasioned pyschiatric injury in the absence of appropriate expert evidence and that he should have followed the decision in Chan-Fook.

PSYCHIATRIC INJURY .

In Chan-Fook, the Court of Appeal, was primarily concerned with the broad question whether or not "actual bodily harm" was capable of including psychiatric injury. In that respect, it stated:

"In the case of Attia, the Court of Appeal discussed

where the borderline should be drawn between, on the

one hand, the emotions of distress and grief and on the

other hand some actual pyschiatric illness such as

anxiety, neurosis or a reactive depression. The

authorities recognised that there is a line to be

drawn and whether any given case falls on one side

or the other is a matter for expert evidence. The

civil cases are also concerned with the broader question of the boundaries of the law of negligence

and the duty of care, which do not concern us.

Accordingly, the phrase "actual bodily harm" is capable

of including pyschiatric injury. But it does not

include mere emotion such as fear, distress or panic,

nor does it include, as such, states of mind that are

not themselves evidence of some identifiable clinical

condition. The phrase "state of mind" is not a

scientific one and should be avoided in considering

whether or not the pyschiatric injury has been caused;

its use is likely to create in the minds of the jury

the impression that something which is no more than a

strong emotion, such as extreme fear or panic, can

amount to actual bodily harm. It cannot. Similarly,

juries should not be directed that an assault which

causes a hysterical and nervous condition is an assault

occasioning actual bodily harm. Where there is evidence that the assault has caused some pyschiatric

injury, the jury should be directed that injury is

capable of amounting to actual bodily harm; otherwise

there should be no reference to the mental state of the

victim following the assault unless it be relevant

to some other aspect of the case, as it was in Roberts".

The Court then went on to make the observations concerning the necessity of expert evidence which we have already quoted.

In R -v- Burstow and R -v- Ireland , House of Lords, 24th July 1997, Lord Steyn, with whom their Lordships all agreed, considered the correctness of Chan-Fook in deciding two appeals from decisions of this court. In Burstow, the appellant had been charged under S.20 of the 1861 Act in a case where his menacing harassment had induced severe depressive illness in his victim according to a consultant psychiatrist who gave evidence in the case. In Ireland the appellant had similarly caused his victim to suffer psyhiatric symptoms as a result of harassment by repeated telephone calls. In the section of his speech headed "The common question: Can psychiatric illness amount to bodily harm?", Lord Steyn noted that the case of Chan-Fook involved the quashing of the conviction on the ground, inter alia, of the "absence of psychiatric evidence to support the prosecution's alternative case". However, he stated:

"The interest of the decision lies in the reasoning

on psychiatric injury in the context of Section 47...

The ruling in that case was based on principled and

cogent reasoning and it marked a sound and essential

clarification of the law".

It has been argued for the Crown on this appeal that the endorsement by the House of Lords of the reasoning in Chan-Fook that bodily harm can extend to psychiatric harm was not directed to the observations of Hobhouse LJ upon the evidential requirement for expert psychiatric evidence in every case where it is alleged that the issue arises. That may well be so. However, in the light of the earlier reference by Lord Steyn without qualification, to the observations of Hobhouse LJ upon the evidential question, we consider that Chan-Fook has now been effectively approved at the highest level. Nor would we be inclined to demur in any event. It seems to us clear that, while psychiatric injury, in the sense of a persisting neurotic disorder such as a chronic anxiety state or depressive disorder, should be held capable of amounting to bodily harm, the gradation of such conditions and their distinction from "mere emotions such as fear, distress or panic" (per Hobhouse LJ) or "a simple state of fear, or problems in coping with every day life" (per Lord Steyn) is essentially a matter for psychiatric opinion.

Counsel for the Crown in this case has urged upon us that the facts and the nature of the evidence in Chan-Fook which constituted the context in which the remarks of Hobhouse LJ were made, were a world away from this case in two particular respects.

First, in Chan-Fook, the court was dealing with a brief moment of extreme fear inflicted upon the victim before he jumped from a window with no suggestion of lasting, or indeed any, injury to his psyche. Second, the question of whether or not there was psychiatric injury rested upon the argument of counsel and not upon any detailed evidence from the victim as to his mental state over a substantial period. Plainly no reasonable jury could have convicted the defendant in that case on the basis of psychiatric injury. It was simply a case of momentary fear. However, in the present case, in addition to evidence from the victim that she experienced symptoms such as fear, loss of temper and lack of concentration, she spoke also of headaches, fatigue and "aches and pains" of a physical nature. In such a case, the Crown argues, those physical symptoms satisfied the time-honoured definition of bodily harm as including any hurt or injury calculated to interfere with the health or comfort of the victim. Finally, not only were the complainant's symptoms corroborated by way of complaint to her general practitioner, but her statement that she experienced them was unchallenged in cross-examination. In those circumstances, it is argued for the Crown that the jury would be, and in the event was, fully entitled to draw the conclusion that her physical pain, i.e. actual bodily harm, while not directly and immediately inflicted, was nonetheless caused by the conduct of the appellant.

Taking those arguments in stages, it seems to us that the first point made is correct. It is plain that in Chan-Fook this court was indeed dealing with the arguments raised on the basis of facts which demonstrated no more than momentary fear or panic, rather than any lasting condition which might be said to amount to psychiatric illness or a continuing neurotic disorder.

As to the second point, it is also correct that the evidence did not involve, and the court at no stage addressed itself to, a situation where the pyschiatric trauma experienced by the victim gave rise to symptoms of pain and physical discomfort as opposed to symptoms of fear, distress or panic, (whether or not amounting to a persisting neurotic disorder or chronic anxiety state). The question addressed by the court was the broader question of whether psychiatric injury not itself giving rise to harm of a physical nature might yet come within the definition of actual bodily harm.

ACTUAL BODILY HARM .

What constitutes "actual bodily harm" for the purposes of S.47 of the 1861 Act is succinctly and accurately set out in Archbold (1997 Ed) at p.1633 para 1-197 as follows:

"Bodily Harm has its ordinary meaning and includes

any hurt (our emphasis) or injury calculated to

interfere with the health or comfort of the victim,

since hurt or injury need not be permanent, but must

be more than transient or trifling: R -v- Donovan

[1934] 25 Cr. App. R. 1, cited with approval ... in

R -v- Brown [Anthony] [1994] 1 AC 212 at pp.230 and

242 respectively.

Actual Bodily Harm is capable of including psychiatric

injury but it does not include mere emotion, such as

fear, distress or panic ... R -v- Chan-Fook 99 Cr. App. R. 147"

In the light of that definition, Mr. Kogan for the appellant conceded that the definition of actual bodily harm is wide enough to include pain or hurt such as persisting headaches, vomiting, pains in joints and stomach-aches which are not directly caused by physical trauma, accepting, as he did, that nothing in Chan-Fook or Burstow suggests otherwise. However, he also submitted that, in circumstances where the pains complained of are not the direct result of physical trauma inflicted on the victim by the offender, psychiatric considerations almost inevitably arise on the question of causation, first, as to whether the experience suffered by the victim at the hands of the defendant was capable of giving and/or likely to give rise to symptoms of the kind complained of by the victim; second, the likelihood of other factors, experiences or features of the victim's daily life being responsible for the symptoms experienced by the victim which (ex hypothesi) are pyschiatric in origin. Thus, the observations of Hobhouse LJ. in Chan-Fook on the need for expert evidence to prove a pyschiatric injury amounting to "bodily harm" should equally be applied to the question of causation.

It has been argued for the Crown before us that, while that may often be so, and while it may also be that the remarks of Hobhouse LJ. are apt on their face to cover the question of causation as well as the nature of the illness, this was an unusually clear case which was properly left to the jury because of the state of the evidence at the end of the prosecution case, namely uncontradicted evidence of bodily harm in the form of aches and pains, from a witness who credibly stated that she had never previously suffered from such symptoms. Indeed, her evidence in that respect was unchallenged. Thus the inference of causation was as clear as need be, without the assistance of expert evidence, no issue having been raised in that respect.

While that argument is attractive on its face, it is not in fact the way in which the case was put, either by the prosecution or by the Judge in summing-up. Neither approached the matter on the basis that the jury should concentrate upon the physical aches and pains; but rather that they should deal with the case overall as one of psychiatric injury. Indeed, contrary to what might have been expected from the views of the Judge expressed at the submission stage, he warned off the jury from attributing any cause to the aches and pains. The relevant parts of his summing-up in those respects are as follows:

"All of us from time to time may suffer from distress

or upset or fear arising out of the rough and tumble of every day life .... But we have to learn to live

with these ordinary every day occurrences and in the

normal way the upset, or distress, or fear will soon

pass and we get on with the business of living. There

is nothing there capable of amounting to actual bodily

harm. But there can come a time when the upset, the

distress, the fear are so deep and substantial, so

prolonged, that over a period you are constantly in

real fear. You cannot sleep, you feel so ill that

you cannot work from time to time, and you feel

compelled to take tranquiliser drugs such as Valium.

You are, of course, not medically qualified and must

not, quite rightly, set yourselves up to act as doctors

or psychiatrists when you consider the evidence. But

I will not direct you that you cannot use your common

sense. You can use it as you can draw upon your every

day experience of life."

He went on to say of the victim's evidence:

"If you are satisfied she has given an accurate and

truthful account of the defendant's conduct and the

effect it had upon her, then what she has suffered,

I would tell you, is capable of amounting to actual

bodily harm; although it is always for you to say

whether it does or not".

While he also went on to give an account of the victim's symptoms as described by her and set out earlier in this judgment, in relation to her complaints of aches and pains he said as follows, when referring to the statement of the general practitioner:

"She told you that Miss Southall complained of various

body pains in her joints and abdomen, for which she had

blood tests which showed no abnormality. As to that, it is right that I should say this: There is no

evidence that these pains were, in fact, as a direct

result of what had happened. And let me repeat the

warning I gave you at the outset when dealing with

actual bodily harm; it is very important that you

do not set yourselves up as doctors or psychiatrists."

In relation to the doctor's record of Miss Southall's complaints, he referred to the fact that the doctor had found no abnormalities in her thought processes and went on:

"Do remember this, what the doctor is there doing, after what the doctor found on examination is, in

effect, noting down what she has been told by Miss

Southall. So it doesn't prove that is how Miss

Southall was. But you have heard Miss Southall's

evidence; as to that its for you whether you choose

to accept it or not".

Accordingly, having been told that, so far as the pains were concerned, there was no evidence that they were the direct result of what had happened and that they should not set themselves up as doctors or psychiatrists, the jury were left nonetheless to make a judgment on a matter calling for psychiatric expertise on the basis of the evidence of the victim herself.

It is true, as counsel for the appellant has conceded, that her evidence was not effectively challenged in any way. However, absent the availability of psychiatric evidence which the Judge had precluded by his earlier ruling, the defence was in no informed position to challenge the nature or cause of her symptoms or to advance the likelihood that that they were attributable to some cause or stress other than the conduct of the defendant. In that respect therefore the defence had to be conducted at a substantial disadvantage.

It seems to us that, following the decision of this court in Chan-Fook, in the absence of psychiatric evidence supporting the prosecution case (1) that victim's symptoms other than pain amounted to psychological illness or injury and (2) that the pains experienced were the result of the appellant's (non-physical) assault, the case should not have been allowed to go before the jury.

That being so, and with some regret in the light of all the circumstances, we consider that the appeal should be allowed.

Equally, we consider that this is a case which should be the subject of a re-trial. According to counsel for the Crown, psychiatric evidence would have become available had the Judge granted the adjournment which both counsel considered desirable. That being so, and because of the type and circumstances of the particular offence, it is desirable that it should be re-tried upon a proper basis as soon as reasonably possible. In the meantime, subject to any application for bail, the appellant should be remanded in custody to await such re-trial. The conviction and sentence on count 1 are therefore quashed and we make an order that the appellant be re-tried on a fresh indictment upon which he should be arraigned within two months of today. Subject to any later application for bail, he shall be remanded in custody to await such re-trial.

We would only add that, while it has not been necessary in the circumstances to deal with the appeal against sentence, it is doubtful whether an offence of this kind is likely to amount to a "violent offence" for the purposes of S.2(2)(b) of the Criminal Justice Act 1991, since the likelihood of only psychological injury is not enough to satisfy that definition: c.f. R -v- Ragg [1966] 1 Cr. App. R. (S) 176.